White House Tries Again To Find Compromise On Contraception

By: Julie Rovner
February 1, 2013

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The Obama administration on Friday issued another set of proposed rules — and asked for yet another round of public comments — in a continuing quest to find a way to ensure that women receive no-cost contraception as part of a package of preventive health services under the 2010 Affordable Care Act without requiring religious employers to violate their beliefs.

The rules largely attempt to flesh out proposals made last year, said administration officials.

"The proposed rules lay out how nonprofit religious organizations, such as nonprofit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization," said a fact sheet issued by the Department of Health and Human Services.

The new rules — which will be open for public comment for 60 days — apply only to nonprofit religious organizations that provide health coverage to their employees. These organizations will be given options for ensuring that their female employees have access to contraceptive coverage that does not require the employer "to arrange, contract, pay or refer for," Chiquita Brooks-LaSure, of the Health and Human Services Office of Health Reform, said on a conference call with reporters.

The rules also clarify the definition of "religious employers," who are completely exempt from the requirement to offer contraceptive coverage.

But the rules do not make any accommodation for for-profit companies, even those whose owners have sued to demand the right to exercise their own religious beliefs by refusing to offer such coverage.

That angered those representing the dozens of companies who have filed such lawsuits.

"The administration's narrow gesture does nothing to protect many faith-based employers or religious families from the unconstitutional abortion pill mandate," says Matt Bowman of the Alliance Defending Freedom, a legal group backing some of the suits. "The government has no business putting religious freedom on the negotiating table, or picking and choosing who is allowed to exercise faith."

But others thought it perfectly proper to leave these businesses out of the discussion.

"In our legal system and our society, secular, for-profit businesses — like Hobby Lobby — don't exercise religion and must be regulated to protect their employees and the public," says Elizabeth Sepper of the Washington University School of Law in St. Louis. Hobby Lobby is one of the companies suing over the mandate. "Any other rule would just mean corporations could force religious views on their employees, no matter what the employees' beliefs are," she says.

Under the administration's proposal, nonprofit religious groups would have their employees automatically covered by their insurance companies, at those companies' expense.

For those organizations that are "self insured" and don't have an insurance company providing coverage, the firm that processes their health claims would partner with an insurance company. Both the insurance company and the claims processing company would be reimbursed for the cost of the contraceptive coverage through a lowering of the "user fees" that are to be assessed on insurers who participate in the new health insurance exchanges that begin in 2014.

That proposal, however, didn't fly as an acceptable compromise with some groups.

"The administration claims that it is relieving the employer of the moral conflict by obligating the insurer to pay for the objected-to drugs and services," said a statement from the National Right to Life Committee. "This is a subterfuge, since the employees would not be getting the objected-to services if the religious employer was not paying for the health plan."

But a key group that held its fire — for now — was the U.S. Conference of Catholic Bishops, which has been spearheading opposition to the requirements. It issued a brief statement saying that they "welcome the opportunity to study the proposed regulations closely" and "look forward to issuing a more detailed statement later."

Final regulations on the matter are expected this summer, administration officials said.

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